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Originally published by LA Times

The scene in the TV ad: a football locker room. A man walks toward the camera, looking us dead in the eye. His name is Tommy Tuberville. He is a Republican, a former football coach, running for the United States Senate in Alabama. He makes three promises.

We’ll drain the swamp, he says. Build the wall. No amnesty, ever.

I can understand drain the swamp and build the wall – Coach Tuberville has borrowed Donald Trump’s MAGA chorus. But no amnesty?

Was anyone talking about amnesty? We are more than three years into the Trump regime, and anything resembling amnesty for undocumented immigrants is so far out of the picture we can scarcely remember it. Congress last considered large-scale legalization schemes under the last president and the one before that. Those were so loaded with conditions, so onerous and unforgiving, that calling them amnesty was a partisan stretch. They all failed.

America has moved on from arguing about unauthorized immigrants to brutalizing them, as a matter of federal policy. The Trump administration has raided their homes and workplaces, hunted them down at the border, abused and neglected them in custody and prosecuted people who tried to rescue them in the desert. Tens of thousands of immigrants are trapped in a vast detention archipelago, and many are now exposed to the deadly coronavirus. Parents have been forced to choose between being detained indefinitely or giving their children up.

Under the cover of the pandemic, immigration and asylum laws are being ignored. And any form of federal aid is off-limits to undocumented immigrants – even those risking their lives as essential workers to keep others safe, fed and healthy during the crisis.

So, amnesty?

It takes a particular kind of perversity for Republican politicians to be flogging that word – and variants like bailout and handout – at a time when immigrants are struggling just to stay alive. This month, Sen. Tom Cotton of Arkansas introduced the No Bailouts for Illegal Immigrants Act, which blocks funding to states or municipalities that give stimulus checks to undocumented immigrants.

Coach Tuberville would call it running up the score. It is merciless.

All this comes out of a playbook that redefines amnesty to mean anything that might make life more secure or less miserable for the undocumented. Under this definition, the deferred-deportation DACA program for young immigrants, now before the Supreme Court, is amnesty. A farmworker bill is amnesty. The latest Democratic stimulus bill is amnesty, because it temporarily protects immigrants in essential industries from deportation and allows them to receive pandemic relief. For similar reasons, Gov. Gavin Newsom’s plan to slip a little disaster cash to undocumented Californians would be considered amnesty.

Tucker Carlson cries amnesty on Fox News. Acting Deputy Homeland Security Secretary Ken Cuccinelli cries amnesty on Twitter.

Undocumented immigrants, of course, are not waiting on amnesty. They’re just trying to survive. Nadia Marin-Molina, co-executive director of the National Day Laborers Organizing Network, told me recently that COVID-19 has made the usual bad things worse. Immigrant workers are now dealing with sickness and severe unemployment on top of exploitation, wage theft, workplace dangers and Trump-era dehumanization. They are paying taxes without getting government benefits, losing jobs without unemployment checks, getting sick without health insurance. Many are missing rent and going hungry.

Some immigrants have been telling their stories in virtual gatherings to win support in Congress for an Essential Workers Bill of Rights. They have also been pressuring Gov. Andrew Cuomo of New York to follow California’s lead in giving cash aid to the undocumented, which he has refused to do.

Braulio Rosaliano, who works in construction and food delivery in Brooklyn, said during a Zoom call of day-laborer advocates, I know it’s dangerous. I live in Sunset Park, one of the most affected areas. It’s easy to say, yes, stay at home, but who is going to pay the rent, who is going to provide for our families?

Maria Aguilar, a house cleaner from Brooklyn has lupus and had to stop working to avoid getting sick. She said on another call: Staying home has resulted in me losing my ability to earn a living, she said. I have no ability to pay rent, electricity, gas, phone and food.

Day-labor centers across the country adjusted quickly to the pandemic, adding hygiene training and COVID-19 updates to their classes on workplace safety and employment rights. Members are sewing masks and distributing money and food. And they are mourning colleagues, relatives and friends.

As immigrant advocates push for inclusion in life-saving pandemic aid, one of their rallying cries is Y Nosotros Que? And what about us?

It’s an excellent question.

Amnesty is a word disliked in the immigrant-rights world, too. Many advocates reject it, because it means a gift to the undeserving. Workers who are paying taxes, raising children and contributing to our communities feel they have been demeaned and criminalized enough.

Amnesty is not a perfect word, and it’s been made toxic by right-wing forces. But it gets at something: the vast unpaid debt this country owes the undocumented. Amnesty is not on the table. But it should be. It’s the least this country can do.

Lawrence Downes, an editor and writer in New York, covered immigration for the New York Times editorial board from 2005 to 2017.

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Originally published by The Hill

A Democratic House candidate in Kentucky wants all immigrants living in the country illegally to be granted amnesty.

Hank Linderman, who is challenging Rep. Brett Guthrie (R-Ky.) in November, made the call in a statement obtained by the Louisville Courier Journal on Monday.

“I am calling for action to help the millions of undocumented people already working in our communities, serving in our military and raising families by granting amnesty,” Linderman said in the statement.

The Democrat said that all qualified immigrants living in the country would be granted amnesty as of July 4 if he wins against Guthrie, who has represented the state’s 2nd Congressional District since 2009.

Linderman also called for the restructuring of U.S. Immigration and Customs Enforcement (ICE) and for the federal law enforcement agency’s mission to be refocused as more Democrats call for ICE to be abolished amid an intensifying controversy over President Trump‘s “zero tolerance” immigration policy, which had led to the separations of hundreds of families.

“The abuses we have seen, including family separations, extended incarcerations and even violent and sexual assault, must stop,” Linderman said.

“We are a nation of immigrants,” Linderman continued. “To deny this reality is to deny our nation itself.”

“Any reform of immigration law and process in the United States must include amnesty for those already living here,” Linderman added.

Linderman, a self-employed musician and recording engineer, beat out three other Democratic candidates in the May primary with 30 percent of the vote, according to Courier Journal.

The district hasn’t elected a Democratic representative since Rep. William Natcher, who served from 1953 to 1994, the newspaper reported.

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Originally published by NY Times

The biggest taboo in the immigration debate is the idea of an amnesty. Immigration opponents routinely paint amnesties for undocumented immigrants in the United States as catastrophic blows to the rule of law.

The implication is that the only proper thing to do is enforce laws uniformly, all the time, without exceptions – and that an immigration amnesty would thus be a threat to truth, justice and the American way.

But there’s a problem with that theory: Amnesties, though not always labeled as such, are central to how the nation’s legal system functions.

The ways that laws are not enforced, legal experts say, can be as vital to the legal system’s effectiveness as enforcing them.

Amnesties all the way down

Take criminal law, for instance. One might imagine that this is an area where uniform enforcement is particularly important: Society has an interest in preserving public safety and seeing justice done. That is why criminal cases are brought on behalf of the state.

But in fact, statutes of limitations mean that most crimes can’t be prosecuted at all after a certain amount of time has passed, usually no more than a few years. The principle is so strong that only a small number of very serious crimes can be prosecuted indefinitely.

The same is true of civil lawsuits. Plaintiffs can sue only within a set window of time. After that, even if they have suffered serious harm, they are out of luck.

Taxes? The Internal Revenue Service currently offers an amnesty programfor people who’ve stashed money overseas. If they come clean and pay, they avoid some or all penalties.

Even property law has a version of this, found in common-law rules saying that if someone has been using land a certain way for decades, that person is granted the legal right to continue – even if someone else actually owns the property in question.

And those are just some of the official limits in laws and court opinions. There are also the countless little everyday amnesties when officials exercise their discretion: the prosecutor who declines to pursue a case or drops certain charges as part of a plea bargain, the police officer who doesn’t write a ticket.

In other words, if you define amnesty broadly, as a rule or discretionary decision that exempts certain people from the legal consequences of their wrongdoing, then the American legal system is amnesties all the way down.

Serving the public by not enforcing the law

Those rules all share one unifying principle: that sometimes the public interest is best served by not enforcing the law. That even if a person is culpable for a serious offense, sometimes we gain more, as a society, by not holding the person legally responsible.

Tony O’Rourke, a professor at the University at Buffalo School of Law currently serving as a fellow with the Federal Defenders Service of New York, called criminal statutes of limitations an important part of due process protections.

Prosecutions, if they occur too far in time from when the offense occurs, no longer vindicate the goals of punishment, Mr. O’Rourke said, except in the case of some especially serious offenses. Statutes of limitations are a way to protect both the public and defendants against government overreach.

It is absolutely a limitation on the power of the state, in the same way that the Bill of Rights is a limitation on the power of the state, and the due process clause is a limitation on the power of the state, he said.

James Forman, a professor at Yale Law School, says that because prosecutors act on behalf of society and its citizens, part of the message that prosecutors are sending when they decide not to prosecute is that we, as a society, don’t want someone to suffer the stigma of a criminal conviction for this action. That element of discretion and forgiveness can bolster the legitimacy of the system.

There are gains in efficiency as well, said Miriam Baer, a professor at Brooklyn Law School and a former federal prosecutor. It’s not a one-way street, she said. If drafted correctly, the government gets something, too.

Tax amnesties, for instance, increase the revenue that is collected. And the government then doesn’t have to investigate and prosecute the tax crimes.

There can be downsides to such amnesty programs, Ms. Baer cautioned. If not set up carefully, they can encourage people to break the law in the hope that they will eventually be forgiven rather than punished.

But that can often be avoided through careful drafting. And ultimately, she said, amnesties are common because the gains in productivity and efficiency are worth that risk.

Why is immigration different?

Immigration law, by comparison, is a bit of an outlier. There is no set period of time after which an undocumented immigrant is automatically safe from deportation.

To be clear, the unlawful presence of an undocumented immigrant is generally not a crime, nor is being in the country without papers. So the immigration and criminal systems are not an apples-to-apples comparison.

But at the same time, courts recognize that deportation is similar to criminal punishment in terms of its severity. That is why criminal lawyers are legally required to inform their clients about the immigration consequences of guilty pleas, Mr. O’Rourke said, in order to provide constitutionally adequate counsel.

Yet immigration offenses are far less serious than crimes, like homicides, that don’t have statutes of limitation, Mr. Forman said.

Certainly, offenses on par to being in the country illegally, they tend to have one, two, three-year statutes of limitations, he said.

Nor does the immigration system offer a realistic equivalent of property law’s common-law provisions that protect the status quo after years of peaceful use: Decades-long records of law-abiding life in the United States – particularly for those who arrived after 1972 – do not give undocumented immigrants citizenship.

And although there have been temporary immigration amnesties in the past, they have been rare and unpredictable. And today, in contrast with, say, the tax system, there is no large-scale amnesty program available.

The most recent large-scale amnesty was under President Reagan, whoseimmigration reforms granted legal status to nearly three million people in 1986.


An amnesty by Ronald Reagan in 1986 was not forgotten by anti-immigration protesters in Washington decades later. CreditAllison Shelley/Getty Images

But that amnesty came with an enforcement crackdown stopping the flow of temporary workers across the southern border. Researchers have found that caused many to put down roots in the United States instead of returning seasonally to Mexico and Central America. Since then, the United States has had a large population of undocumented immigrants who live, work and have families in the United States, but who have little hope of achieving legal status.

A narrower program, the LIFE act, offered legal status to some undocumented immigrants in the 1990s if they had family members who were United States citizens and could petition on their behalf. But it ended in 2001.

A need for finality

That means that there is effectively only one imperfect release valve for the immigration system: the discretion of the people responsible for enforcement.

The president and Department of Homeland Security can issue guidelines saying that certain groups of people, such as those without criminal records, should not be deported.

The Deferred Action for Childhood Arrivals program, commonly known as DACA, was essentially a form of structured prosecutorial discretion ordered by the president.

But that kind of discretion offers only temporary relief from deportation, not the finality of a statute of limitations or other similar relief.

That difference was thrown into sharp relief last month, when President Trump ended the DACA program, leaving recipients fearful that they will now be subject to deportation.

The work that amnesties, statutes of limitations and other such rules do is often invisible. The backlogs prevented are hard to detect, the resources saved unnoticed. But they serve vital functions.

It’s a routine and robust part of our justice system, Mr. Forman said. Everybody in the system knows that it’s a myth that you can go after everyone all the time. You just can’t.